Monday, August 14, 2017

While fossil fuel giant Chevron still refuses to pay its $12 billion environmental judgment to the indigenous groups it poisoned in Ecuador, company CEO John Watson apparently has found the time to try to impose a massive $32 million liability on the solo human rights lawyer who beat his company in court.

As background, it is undeniable that Harvard Law grad and American human rights advocate Steven Donziger did something so extraordinary to hold Chevron accountable for its environmental crimes that Watson decided to launch a crusade against him. Working against huge odds with a team of Ecuadorian rainforest leaders and local lawyers, Donziger spent eight years (2003 to 2011) coordinating the litigation in Ecuador against Chevron over the deliberate dumping of billions of gallons of chemical-laced oil waste into the rainforest. The case took place in Ecuador at Chevron's insistence and the company accepted jurisdiction there.

After overcoming Chevron's repeated attempts to sabotage the proceeding, a court in 2011 found the company guilty and imposed a $19 billion judgment that was halved when a punitive damages penalty was struck. (The amount is now $12 billion because of interest.) It is without doubt the largest environmental judgment in history from a single court case. Chevron's toxic dumping in Ecuador decimated indigenous groups and caused an outbreak of cancer that has killed or threatens to kill thousands of innocent people. Locals call the catastrophe the "Amazon Chernobyl; this photo essay by acclaimed journalist Lou Demettais captures the brutal human cost of what can only be described as a deliberate act of industrial homicide.

The Ecuador trial-level decision against Chevron -- based on voluminous evidence including 105 technical evidentiary reports -- was affirmed unanimously by two separate appellate courts in Ecuador, including by the country's Supreme Court. Not even Chevron disputes that it dumped the toxic waste or that it was the exclusive operator of the oil fields. But to evade paying the judgment from its preferred forum, Chevron tried to cover up its criminal misconduct.

Chevron hired 60 law firms and roughly 2,000 lawyers and investigators in part to cook up fake evidence to file a "racketeering" (or RICO) case against Donziger, Ecuadorian lawyer Pablo Fajardo, community leader Luis Yanza, and all 47 of the courageous villagers from the affected area who stepped forward as class representatives. As part of its intimidation model, Chevron General Counsel R. Hewitt Pate promised the indigenous groups and their lawyers a "lifetime of litigation" if they persisted.

Part of that model was to retaliate against Donziger personally back in New York federal court in an unprecedented collateral attack on a foreign judgment. Another Chevron goal was to use the retaliation case to try to intimidate lawyers and supporters of the villagers with the threat of harassing lawsuits. Chevron also peddled its false narrative from the case to the financial markets to distract from the Ecuador liability and to prop up the company's stock price.

A distinguished member of two bar associations, Donziger is a solo practitioner who along with environmental groups such as Amazon Watch and shareholder activist Simon Billenness has driven the accountability campaign against Chevron for over two decades.

Described as a man of "Herculean tenacity" by Bloomberg, Donziger is also known for creating a new human rights funding paradigm that has allowed the impoverished indigenous groups of Ecuador to sustain their case for years against one of the world's richest companies. The private financing model alone surely terrifies Chevron. Fossil fuel companies are not used to their victims being represented by top-flight litigators like Canada's Alan Lenczner or Brazil's Sergio Bermudes, who are trying to seize Chevron assets to force it to comply with the rule of law and pay the judgment.

If Chevron's so-called "retaliation" case against Donziger and the Ecuadorians was designed to silence their campaign, it obviously failed. Left with little to show for its massive expenditures on RICO given that the villagers are successfully enforcing their judgment in Canada -- with the Canada Supreme Court already ruling in their favor -- Chevron is now trying to "punish" Donziger back home. (For more on Chevron's difficulties in Canada from the Ecuador liability, see here.)

Chevron's attacks only serve to underscore the extent of the bullying approach being used. In fact, it is no less than staggering to see the extent of Chevron's cowardice in the context of its attacks against Donziger and the Ecuadorian indigenous groups. These attacks happened after Chevron sold off all of its assets in Ecuador as the evidence against it mounted.

Chevron generates revenue at roughly $200 billion per annum and pays its top lawyers at the firm Gibson Dunn $1,500 per hour; Donziger lives and works out of a small apartment in Manhattan while most of his clients are lucky to make $200 monthly. When Donziger and the villagers challenged Chevron's claim that the entire Ecuador lawsuit was "sham" litigation, the company dropped part of its claim to avoid producing internal documents related to its toxic dumping. (See here and here for articles Donziger has written about the case of the indigenous groups against Chevron.)

After having sued Donziger for roughly $60 billion, Chevron dropped all damages claims on the eve of trial in what can only be described as a bombshell retreat to avoid a jury of impartial fact finders. While that move took away any remaining legitimacy from Chevron's bogus case, it did allow the proceeding to be tried alone by a pro-corporate judge (Lewis A. Kaplan) who repeatedly made comments from the bench that the villagers interpreted as racist. Chevron also hired the corporate espionage firm Kroll to spy on Donziger while deploying at least 114 lawyers to fight him in court.

Under the U.S. Constitution, anybody sued for money damages has the right to a trial by jury. By dropping its damages claims out of fear Donziger would defeat its lawyers before a jury, Chevron bailed on the main part of its case to leave the dirty work to Judge Kaplan. One of Kaplan's first moves was to exclude the scientific evidence of pollution used to convict Chevron in Ecuador.

Judge Kaplan also prevented Donziger from telling his side of the story in open court as part of a series of rulings that seemed more in sync with a judicial apparatchik in Putin's Russia than a neutral federal judge. For a comprehensive summary of how Chevron made a mockery of justice in Kaplan's court, see here and read Donziger's appellate brief. Prominent attorney John Keker also accused Kaplan of showing "implacable hostility" toward Donziger and allowing the matter to "degenerate into a Dickensian farce" unworthy of any civilized country.

Chevron also used the Kaplan proceeding to unveil a new corporate playbook: invest massive sums to try to weaponize the American civil justice system to flog those holding it accountable. Chevron issued subpoenas to more than 100 environmental activists, bloggers, and academics who had some connection to the Ecuadorian communities. Yet at bottom Chevron had nothing other than a series of procedural complaints about the conduct of the Ecuador trial that already had been either corrected or rejected by Ecuador's courts.

With virtually nothing to work with, Chevron's lawyers became so desperate that they paid an admittedly corrupt Ecuadorian witness at least $2 million in cash and benefits to lie in Kaplan's court. That witness, Alberto Guerra, claimed Chevron lost the case because Donziger had arranged for a bribe to be paid to the trial judge so that his Ecuadorian legal team could "ghostwrite" the judgment. Guerra's claims have been thoroughly debunked by scientific evidence and rejected by three layers of courts in Ecuador, and by two appellate courts in Canada. Guerra later admitted under oath that he had lied repeatedly on the stand before Kaplan.

Chevron CEO Watson and his besieged General Counsel R. Hewitt Pate still stand by the fake "bribe" story. They pump millions of dollars of company funds into the Gibson Dunn law firm to propagate the core falsehood. Kaplan also refuses to set aside his ludicrous decision that the Ecuador judgment was obtained by fraud even though Chevron's case has fallen apart, potentially exposing the company and its lawyers to criminal liability.

The campaign against Donziger has become such an obsession to Watson and his management team that it threatens a serious blowback. Watson and Pate essentially have bet their jobs on the RICO case given the massive investment of resources in fabricating false evidence and attacking the human rights community. Major Chevron investors are furious and shareholder resolutions connected to the Ecuador liability have received widespread support in recent years.

Given that Chevron caved when it came time to test its evidence before a jury, the company is now trying to paralyze Donziger on the back end by insisting he pay the company $32 million to cover a small part of its legal fees in creating the sham allegations. The effort is a clear violation of the RICO law and the Constitution, as this court submission by Donziger points out. Simply put, there is no legal authority for Chevron to collect legal fees after it fabricated evidence and denied its adversary a jury.

In what can only be described as a situation that evokes shades of modern-day Russia, the same pro-Chevron judge in the U.S. (Kaplan) who already refused to hear evidence that Chevron defrauded the court to frame Donziger now gets to hear the motion to force Donziger to pay Chevron's fees for the work of its lawyers in framing him. That's not how the rule of law is supposed to be administered in a society with an independent judiciary.

(If you think the Russia comparison is inapt, read about a Russian lawyer named Magnitsky who was framed by multiple judges with fake evidence when he uncovered a massive tax fraud a few years ago. The book Red Notice by the American Bill Browder is the best account.)

A retaliatory legal action so petty and desperate from one of the world's largest corporations against a brave lawyer who stood up to Chevron's 2,000-person team would be hard to find in the history of America. The attacks against Donziger decidedly will not help Chevron diminish its growing risk from the Ecuador judgment. And we will see if the beleaguered Chevron legal team at Chevron's outside law firm of Gibson Dunn -- which had marketed itself as a "rescue squad" to save Chevron from the Ecuador liability -- will be able to survive its growing reputation as a serial ethical violator and fake fraud-producer for clients guilty of scandalous behavior.

Besides confronting a fading a business model in a world transitioning to clean energy, there is little doubt Chevron and other oil companies collectively face more than one trillion dollars of unbooked liability for causing environmental damage over many decades. The Ecuador judgment could be the first of many to come. Hence, the massive expenditures to try to kill off the Ecuador case continue.

Donziger and the Ecuadorian villagers have a $12 billion judgment against Chevron. If Chevron succeeds in obtaining a $32 million judgment against one lawyer who has little chance of paying even a small fraction of it, so be it. Anyone keeping score realizes that Chevron is getting devastated.

Chevron's latest attack on Donziger also underscores that bullying often trumps serious merits-based litigation at the highest levels of the fossil fuel industry. Chevron's attempts to defame its victims will not play well in Canada in the upcoming trial to enforce the Ecuador judgment. Chevron has an estimated $25 billion of assets in Canada or more than enough to pay the entirety of the amount it owes to the people it harmed in Ecuador.

The Canada trial likely will result in a remediation paid by Chevron of a humanitarian disaster that never had to happen. Now that it has, Chevron needs to stop presenting fake evidence to courts and cheating the people it poisoned in Ecuador.

Tuesday, August 1, 2017

When is Bloomberg going to finally wake up and fire reporter Paul Barrett for his overall crappy reporting and his repeated bias in favor of Chevron in its scorched-earth campaign to evade paying the $12 billion Ecuador environmental judgment?

The latest example of Barrett's gutter-level pro-business "reporting" comes from a Bloomberg article last week about the latest attempt by a major corporation with environmental problems to use the RICO (or "racketeering") statute to try to intimidate and silence its activist adversaries. The article details how Resolute, a Canadian timber company, has accused Greenpeace of being a "global fraud" after the organization claimed the company was trying to destroy the Boreal forests in Canada.

Let's get this straight: Greenpeace is in the right (see this great video for its version of the case) to accuse Resolute of poor environmental practices. But even it was wrong, does that give a corporation the right to use RICO to claim Greenpeace is like the mob for calling it out?

For that matter, does the RICO statute which was passed by Congress to target the mob give corporations the right to try to sue Greenpeace or any other organization out of existence for exercising its First Amendment speech rights? That's what some corporations and their cheerleader-reporters like Barrett seem to think.

What Barrett should be writing about is how an increasing number of corporate litigation counter-attacks against activists and human rights lawyers are becoming a real threat to our democracy and to free expression. For background on this dangerous global trend, see this compelling blog by Otto Saki of the Ford Foundation and this analysis by Katie Redford of Earth Rights International. These important perspectives are absent from Barrett's reporting.

Now, to Barrett's bias in favor of his favorite oil company Chevron. In the latest article, Barrett tries to artificially give the shaky Resolute lawsuit some heft by comparing it to the RICO judgment Chevron obtained against American lawyer Steven Donziger and his Ecuadorian clients who won a historic $12 billion judgment against the company after it had dumped billions of gallons of toxic waste into the Amazon, decimating indigenous tribes and causing an outbreak of cancer.

(See here for a summary of the overwhelming evidence against Chevron in the Ecuador case and here for the peer-reviewed studies showing high cancer rates in the affected area.)

In the RICO case, evidence demonstrates that Chevron fabricated evidence of a judicial bribe by illegally paying its star witness, Alberto Guerra, a $2 million bribe in exchange for his false testimony. The case fell apart after trial after Guerra admitted he lied repeatedly on the stand and a forensic analysis of the Ecuador trial judge's computers proved he wrote the judgment, contrary to Guerra's testimony that it had been ghostwritten by lawyers for the plaintiffs.

Chevron used hundreds of lawyers to target Donziger, a solo practitioner and human rights attorney. The company admitted its long-term strategy was to "demonize" him. But Chevron's lawyers, in an act of utter cowardice, dropped all damages claims against Donziger on the eve of the RICO trial to avoid a jury of impartial fact finders. This resulted in a ridiculous "judgment" from an arrogant, pro-business federal judge that Barrett constantly lauds in his reporting.

If you want to understand the utter depravity of Chevron's RICO case and why it has completely collapsed since trial, see this press release and this 33-page response to the erroneous findings of the trial judge. But you will hear none of these facts in Barrett's reporting. In his article on the Resolute lawsuit, he writes about the Chevron case as follows:

Chevron proved that its activist foes had transformed their suit against the company into an extortion plot featuring bribery, fabrication of evidence, and the ghostwriting of judicial opinions.

Really? As the above reports prove, this type of analysis is just flat-out wrong and deceptive. The totality of the evidence proves there was no bribe or ghostwriting and the only party to fabricate evidence in the RICO case was Chevron. Yet Barrett has completely ignored these critical developments. He does not even give a nod to the idea of a competing narrative. The perspective of Donziger and his clients is just flat-out missing from much of his reporting for Bloomberg.

While Barrett used his Bloomberg platform to repeatedly shill for Chevron during the RICO trial in 2013, he has never reported on the collapse of Chevron's RICO evidence and still acts as if the flawed judgment in that case is End of Story. Yet that RICO judgment is now virtually worthless to Chevron in courts around the world that are threatening to seize company assets. And, Chevron's RICO strategy has not stopped the Ecuadorian villagers from pursuing their claims in what surely has become one of the most successful corporate-accountability campaigns of all time.

Chevron now faces a veritable mountain of liability ($12 billion) in Canada in a judgment enforcement action that already won the unanimous backing of the country's Supreme Court -- another key development never reported on by Barrett. That's on top of the dozens of factual errors, use of outright plagiarism, and the fictionalized scenes in Barrett's supposedly non-fiction book on the Ecuador case that was rushed out in 2014 to celebrate Chevron's supposed "victory" over Donziger that never was.

The credibility of that book -- most of which could have been written by Chevron's public relations team -- was utterly destroyed in a point-by-point takedown by Donziger himself. Donziger, by the way, is still happily working to hold this monster corporation accountable for its environmental misconduct in jurisdictions around the world.

Barrett's errors in his Ecuador reporting curiously always point in one direction -- Chevron's. He has denied the truth about what really happened to the indigenous people of Ecuador, whitewashed the company's environmental crimes and fraud, and celebrated the "genius" of corporations that use the profits they suck out of the earth to manipulate the civil justice system and violate the constitutional rights of their adversaries.

The fact Barrett is part of a troika of business reporters who for years have shamelessly carried Chevron's water for its disastrous behavior in Ecuador is a real stain on Bloomberg's reputation.

To maintain her own credibility, Bloomberg editor Megan Murphy should get rid of this dinosaur once and for all. Bloomberg should assign a reporter to the Chevron legal beat who can write about these critically important matters with a more balanced perspective.